5 Appealable/Reviewable Decisions

5.1 Notice of appeal to the AAT

Where an application for review of a decision is made to the AAT, ss.29(11) of theAdministrative Appeals Tribunal Act 1975provides for the Registrar or Deputy Registrar of the AAT to notify the decision-maker in writing of the application. Such a notice is sometimes referred to as a s.29 notice or a 29(11). In practice, originals of notices are sent to Legal Services Branch, Canberra, which provides representation for the Department before the AAT. Copies are provided, immediately upon receipt of notices, to the DSH.

5.2 Informal review

Immediately a s.29 notice is received, the case to which it relates should be reviewed by a delegatewho was not involved in the making of the decision in question.The recommendation of the review, together with the case details, should be provided to the Administration Manager (DHOAS) and a decision will be made as to whether to continue with the appeal or replace the decision with one favouring the appellant.

Where, as a result of this informal review process, a decision in favour of the appellant is made, the Legal Services Branch should be informedimmediatelyso that suitable action can be taken in the AAT to settle the matter.

Where the result of the informal review is a decision not to replace the decision which is the subject of the appeal, the documents are forwarded to Legal Services — Branch, and the review process continues.

As a response to the AAT in the form of a s.37 statement (explained below) must be provided within 28 days of receipt of the s.29 notice, action to prepare and lodge the s.37 statement should proceed irrespective of the outcome of the informal review. If a s.37 were not required, DSHwill be notified of this by an advocate from Legal Services Branch.

5.3 Section 37 statement

Where a s.29 notice is issued, s.37 of theAdministrative Appeals Tribunal Act 1975requires the maker of the decision to which the notice relates, to provide to the AAT within 28 days of receipt of the notice, a statement of the terms of and reasons for the decision, and copies of the documents held which are relevant to the AAT's review of the decision. Section 68 of theAdministrative Appeals Tribunal Act 1975provides for the s.37 statement to be lodged with the Deputy Registrar at the AAT Registry in the relevant State. The manner in which this information and documentation (known as a s.37 statement) must be provided is detailed below.

A s.37 statement must:

identify the decision;

set out the findings on material questions of fact;

refer to the evidence or other material on which the findings were based;

give the reasons for the decision;

identify the decision-maker and the person supplying the reasons if that person is not the maker of the decision under review (eg. if the original decision-maker has left the Department); and

be accompanied by a copy of every other document that is in the decision-maker's control and is considered by him or her to be relevant to the review of the decision.

It is important that the reasons for a decision, provided to an affected person in relation to an adverse review decision, conform to the requirements of s.37 of theAdministrative Appeals Tribunal Act 1975.This will enable that statement of reasons to be provided as the s.37 statement, should the affected person appeal to the AAT.

The statement and documents must include a copy of the application for the review.

The complete set of documents (known as "T" documents) should be arranged as follows:-

the first document "T1" must be a copy of the application to the AAT for review;

the second document "T2" must be the s.37 statement;

all other documents (including those referred to in the s.37 statement) must be arranged in chronological sequence in descending order from the earliest to the latest date. (These documents must include a copy of the decision under review if the original statement of reasons has not been included as "T2").

The statement and documents are to be accompanied by a cover sheet summarising the case, a chronological summary of the main events in the case and an index in which a brief description and the date of each document in its sequence is recorded. Each document is to be identified with an exhibit number commencing with the application for review as "T1" and with succeeding documents bearing "T" numbers in sequence. Each page is to be numbered and the pagination set out in the index.

Two copies of the s.37 statement and "T" documents should be provided to the AAT Registry in the State where the appeal was lodged and one copy sent to the Subsidy Section, Central Office. A further copy should be sent to Legal Services Branch, Canberra, for the Advocate who is to represent the Department in the case. A further four copies should be prepared and held in reserve. These will be requested by the AAT via the Advocate only if the case cannot be resolved between the parties during preparation and has to go to a full tribunal hearing.

Examples of the cover sheet and summary and index pages of a s.37 statement may be seen attached to Central Office Instruction No 2 dated 19 December 1988.

Very occasionally new documents relating to the case will come to notice after the "T" documents and s.37 statement have been submitted to the AAT. These new documents should be drawn to the attention of the Advocate from Compensation and Review Branch handling the case who will lodge them with the Applicant and the Tribunal if need be as supplementary "T" documents.

(In practice, Legal Services Branch prefer to prepare the s.37 statement and “T” documents – a copy of the relevant papers relating to the matter should be referred to the relevant Advocate.)

5.4 Representation before the AAT

Decision-makers and authors of s.37 statements will not have to represent themselves before the AAT and normally will not be required to attend preliminary conferences or hearings. The Secretary and Minister will be represented before the AAT, in both preliminary conferences and hearings, by Advocates from the Legal Services Branch who will seek instructions as necessary in relation to any policy advice and the conduct of the matter.

5.5 Reconsideration of decision

Should new evidence which warrants a new decision being made in the Appellant's favour come to light between the lodgement of the s.37 statement and the AAT hearing, the case may be conceded and new instructions should be given immediately to the Advocate from Legal Services Branch who will arrange the appropriate disposition of the matter by the Tribunal.

5.6 Preliminary conferences

Before the stage of a formal hearing is reached, there usually will be at least one preliminary conference between the parties, convened by the AAT. The main purposes of a conference (sometimes conducted by telephone) are to:

identify the issues in dispute;

attempt to settle the case by negotiation; and

if the case cannot be settled at the conference level, to ensure that the issues are properly and expeditiously prepared for hearing by the Tribunal.

Where parties reach agreement at a conference or at any point prior to the hearing, a memorandum of agreement is usually drafted and presented to the Tribunal which then makes an Order in those terms if it has the power to do so.

5.7 Directions hearings

Directions hearings may be held at any stage in the proceedings at the discretion of the AAT to give directions in relation to any preliminary or jurisdictional problem or in regard to the preparation of the case for hearing.

5.9 Hearing of application for review

An application is listed for hearing only if it has not been settled at a conference and the parties have complied with the AAT's directions and prepared their cases. After hearing all the evidence and submissions from both parties, the Tribunal usually will adjourn and release the findings at a later date.

The AAT may affirm or vary the decision under review, set it aside and substitute its own decision, or remit the matter to the decision-maker with such directions or recommendations as it thinks fit.

5.10 Action following completion of appeal

In most cases the AAT will reserve its decision and in due course issue a written decision with reasons which will be served upon all parties involved and will include:

the reasons for the decision;

the findings on material questions of fact; and

a reference to the evidence or other material upon which those findings are based.

The Tribunal may sometimes decide to give an oral decision at the conclusion of a hearing. Such a decision is followed by a written order which is served on all parties. The Legal Services Branch will receive the AAT's decision or order when it is made. If the AAT is setting aside the original decision, the Legal Services Branch will liaise with DSH on the question of a possible appeal to the Federal Court within the 28 day appeal period and before proceeding to implement the decision. If no Court appeal is contemplated Legal Services Branch will advise DSH to take action in accordance with the decision and liaise with Legal Services Branchif any further advice is required.

A list of addresses of AAT Registries is at GO 5.16.

5.11 Appeals to the Federal Court

The hearing by the AAT ends the appeal process in the majority of cases although s.44 of theAdministrative Appeals Tribunal Act 1975allows for a further appeal to the Federal Court by either party on points of law. In the rare case of an appeal to the Federal Court on a point of law, the application of the AAT's decision may be stayed by the Court pending its decision.

5.13 Material facts

The findings on all material questions of fact must be stated. The matter to be included in the statement in this respect may be described as those matters of fact which have to be determined in making the decision.

When determining an application for assistance or an appeal against a refusal of assistance, the following material questions of fact must be addressed:

what assistance is the person seeking?

what is the legislative authority for providing that assistance?

what are the legislative and policy criteria the person must satisfy to obtain that assistance (ie the relevant sections of the Act and policy guidelines)?

which of those criteria does the person not satisfy and why?

5.14 Evidence on which the decision is based

All the evidence relevant to the determination of questions upon which material facts are based must be referred to. It is sufficient that the evidence or other material be referred to, not set out formally, but references should be sufficiently clear for persons affected to identify the material. This can be done by identifying either the source or the nature of the references (whichever is more informative).

In determinations of applications for assistance the two main categories of evidence are the application and supporting evidence provided by the applicant and the evidence from the DSH investigation.

Where evidence or other material put before a decision maker is conflicting, the reasons for preferring one item of evidence over another should be stated.

5.15 Reasons for decision

Every decision should be capable of logical explanation. A statement of reasons should contain all the steps of reasoning necessary for the affected person to understand how the decision was reached and should link the facts and evidence to the decision through that process of reasoning. Each step should be shown as a logical and clear element in a progression to the decision based on full consideration of all the relevant evidence and material.

The legislative and policy criteria relevant to the decision and the conclusion reached on each of those criteria should be clearly stated. As a minimum requirement, the reasons should identify the relevant provisions of the Act and Guidelines by section or part number and content. The delegate should exercise his or her judgement as to whether those provisions should be quoted word for word (this would be the preferred course when citing sections of the Act) or paraphrased, according to the requirements of each case. It is essential to state and link to the facts of the case any element of legislation, policy or judicial precedent which is part of the justification of the decision. It is not sufficient to simply explain the relevant policy in general terms without citing the relevant legislative and manual provisions.

Many of the decisions made by a delegate under the Act necessarily will involve the exercise of a discretion specified in the relevant legislative provision, such as the determination under s.21 of whether the cost of essential repairs would cause a borrower serious financial hardship. In deciding such matters, the delegate must bear in mind that the discretion being exercised is the same as that which would be available to the delegating authority (ie. the Minister or the Secretary) if it was making the decision. In framing reasons, it is therefore important to show that there has been a genuine exercise of any discretionary power.

Where the exercise of that discretion is the subject of a particular Government policy, it is appropriate for the delegate to acknowledge that policy, and to be assisted and guided by it in making a decision, so long as there is no inconsistency or conflict with the relevant legislative provisions. Where such a conflict does exist and the delegate defers to the policy on the matter, it is open to a review authority to decide that there has not been a valid exercise of the power in question. Of course, the delegate should also be satisfied that the application of a particular policy is appropriate to the circumstances of the case being considered.

Where there is more than one reason for making an adverse decision, all such reasons should be given. For example, where an applicant is ineligible for a certificate in relation to an initial advance because of a lack of qualifying service and ownership of another home, both reasons should be stated. This will overcome the possibility of a reviewing authority taking the silence of the decision maker on a particular criterion as an implication that the affected person satisfies that criterion when this may not be the case.

There is no obligation to set the elements of a decision out under formal headings, or to deal with them sequentially, but as an entirety the statement must contain these three elements in a clear and precise form addressing the legislative and policy criteria relevant to the decision and containing all steps of reasoning leading to the decision.